CUB 73603

DENIS DUROCHER, Umpire

The Board of Referees upheld the Commission's decision to refuse to grant the claimant benefits because he was dismissed as a result of his own misconduct. The claimant appealed to the Umpire.

Some facts were not disputed by anyone involved. The claimant went to his doctor's appointment on Friday, August 29, 2008. Late in the afternoon, he and others were informed that the doctor would not be able to see them. Monday was a statutory holiday. He went back to the doctor's on Tuesday, September 2, 2008, and was told that he needed to attend physiotherapy sessions that day and the next (Wednesday, September 3, 2008). The claimant admitted that he did not inform the employer that he was going to be absent on Tuesday and Wednesday.

The claimant reported for work on Thursday, September 4, 2008 with a doctor's certificate that he gave to the employer. He was dismissed immediately.

Some of the other facts differed depending on which party was recounting them. According to the employer, X said that he would report for work on Friday afternoon. X said that he told the employer that he would report for work on Friday if possible.

Again, according to the answers given by the employer in a telephone conversation, X was often absent. X denied this allegation and added that, because of an injury he sustained at work, he had to see a doctor once a week and receive physiotherapy. The employer was informed of the appointment in advance and was given a doctor's certificate after the fact. It is important to note that the other absences are not really relevant to the claimant's dismissal when considered in relation to the Act, the circumstances described in the information in the docket and the evidence.

The undersigned Umpire finds that the claimant's appeal must be allowed.

It is important to note that the onus is on the Commission to prove that the claimant's behaviour constituted misconduct within the meaning of the Act. Also, the claimant should be given the benefit of the doubt if the evidence on each side of the issue is equally balanced.

The Board of Referees properly set out the principles on which it based its decision (Exhibits 19-3 and 19-4). However, the Board came to conclusions that were not reasonable given the evidence and the facts.

The Board of Referees agreed with the employer's allegations and found that the claimant's absences were contrary to the provisions of the collective agreement. In its decision (Exhibit 19-5), the Board stated, "The provisions of the collective agreement are explicit on absences of more than three days, as shown in Exhibit 10-2."

Article 5.06 of the collective agreement (Exhibit 12.2) reads:

[Translation]
5.06. Loss of seniority
Employees lose their seniority and their employment in the following cases ...
(c) if they are absent from work for more than three consecutive days without informing the employer or without valid reason.

Although the Board considered this to be significant when it was explaining the reasons for its decision, the claimant was clearly not absent for three consecutive days or for more than three days. As per usual, he had notified the employer the day before that he was going to be absent on Friday. The employer admitted that such was the case (Exhibit 9-1) but still held the fact that he did not report for work on Friday against the claimant (Exhibit 10-2). Despite the fact that Exhibits 13-1, 13-2 and 14 contradict the employer's version, they were accepted by the Board of Referees.

This is a significant error of fact and is unreasonable.

My finding is mainly based on the rule of law related to the evidence. The onus is on the Commission or the employer to demonstrate that the claimant's behaviour constituted misconduct within the meaning of the Act; the claimant must be given the benefit of the doubt.

In order to meet the requirements of the Act, the evidence must be of a certain level of quality. In this case, in addition to the error mentioned above, the evidence obtained by the Commission and that submitted by the employer is lacking in several respects. The Board of Referees failed to address the fact that the claimant contradicted some of the evidence presented.

The undersigned Umpire is of the opinion that, given the circumstances, the claimant must be given the benefit of the doubt. Contrary to the Act, the Board of Referees failed to grant it to him.

The claimant denied the employer's allegation that he had often been absent in the past. The employer did not provide any documentary evidence to support this allegation.

The letter of dismissal is dated Wednesday, September 3, 2008. At that time, the claimant had been absent on Friday and on Tuesday (Exhibit 10-2). That same day, the claimant was given a warning with regard to his absence on Tuesday (Exhibit 10-3). He was warned with regard to his absence on Friday in a letter dated September 2, 2008 (Exhibit 10-4). X informed the employer in advance that he would be absent on Friday and he gave the employer a doctor's certificate with a reasonable excuse for his absence on Tuesday. In my opinion, these facts considerably weaken the Commission's argument. The evidence contained in Exhibits 4 and 5 is questionable under the circumstances. In addition, as X testified, all of the warnings were issued to him at the same time as his notice of dismissal. In Exhibit 5, the employer said that the procedure for applying gradual sanctions had been applied. In Exhibit 9-1, the employer stated that the claimant had been issued warnings before he was dismissed. The warnings that were submitted (Exhibits 10-2, 10-3 and 10-4) show that such was not the case. The Board also erred by taking into consideration the employer's allegations regarding the claimant's past absences in respect of the collective agreement without also taking into account the claimant's denial of those allegations. The claimant was given only two warnings and not three.

I am pointing out these facts not merely to reiterate the evidence that was presented but to show that the evidence is not strong enough to meet the requirements of the Act.

The Board of Referees noted that "the claimant's credibility was affected by the answers he gave to the officer assigned to this case, as shown in Exhibit 6." The Board of Referees failed to assess the style of that confrontation, which would have affected any reasonable person. The Board also failed to take into consideration the reasonable excuses given to the employer.

This is a question of law, which is based on the burden of proof and the rule of doubt. Errors cannot be made in this regard or in the application of these principles. The undersigned Umpire is of the opinion that the Board of Referees failed to properly assess the Commission's evidence in this regard. The Board also erred when it failed to properly assess the claimant's evidence, which was corroborated by a number of facts in the docket and even by some of the evidence presented by the employer and the Commission. The Board of Referees failed to take into consideration the arguments and evidence presented by the claimant.

Granted, the standards set by the employer and its collective agreement are not necessarily those by which the Commission and the Board of Referees must abide. However, these are clearly the standards that these two parties chose to apply. Nevertheless, even if these standards were to be disregarded, it still could not be said that it was proven that the claimant's behaviour constituted misconduct within the meaning of the Act. Given the explanations, arguments and evidence in the docket, the claimant must be given the benefit of the doubt.

For these reasons, the Umpire allows the claimant's appeal and rescinds the decision rendered by the Board of Referees on December 16, 2008. The matter is referred back to a new Board of Referees that must understand that the claimant should be granted the benefit of the doubt and should therefore be entitled to receive benefits under the Act.

Denis Durocher

UMPIRE

Montreal, Quebec
November 20, 2009